ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-0AR-2005-NM-0007; FRL - _

Approval and Promulgation of Air Quality Implementation Plans; New Mexico;

Transportation Conformity Requirement for Bernalillo County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action approving a State Implementation Plan (SIP)

revision submitted by the Governor ofNew Mexico on December 4,2008 on behalf ofthe

Albuquerque Environmental Health Department (AEHD). This revision serves to incorporate

recent changes to the Federal conformity rule into the state conformity SIP for Bernalillo

County, and supersedes previous revisions submitted by the Governor ofNew Mexico on May

15,2003 and August 4,2005. EPA is approving the December 4,2008 revision in accordance

with the requirements ofthe Federal Clean Air Act (CAA).

DATES: This rule is effective on [Insert date 60 days from date of publication in the

Federal Register] without further notice, unless EPA receives relevant adverse comment by

[Insert date 30 days from date of publication in the Federal Register). If EPA receives such

comment, EPA will publish a timely withdrawal in the Federal Register informing the public

that this rule will not take effect.
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ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-0AR-2005-NM0007, by one ofthe following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions

for submitting comments.

EPA Region 6 "Contact Us" web site: http://epa.gov/region6/r6coment.htm. Please click

on "6PD" (Multimedia) and select "Air" before submitting comments.

E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please also send a copy by

email to the person listed in the FOR FURTHER INFORMATION CONTACT

section below.

Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214-665-

7263.

Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental

Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L),

Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-

2733. Such deliveries are accepted only between the hours of 8:00am and 4:00pm

weekdays except for legal holidays. Special arrangements should be made for deliveries

of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R06-0AR-2005-NM-0007. EPA's

policy is that all comments received will be included in the public docket without change and

may be made available online at www.regulations.gov, including any personal information

provided, unless the comment includes information claimed to be Confidential Business

Information (CBI) or other information whose disclosure is restricted by statute. Do not submit
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information that you consider to be CBI or otherwise protected through www.regulations.gov or

e-mail. The www.regulations.gov website is an "anonymous access" system, which means EPA

will not know your identity or contact information unless you provide it in the body of your

comment. If you send an e-mail comment directly to EPA without going through

www.regulations.gov your e-mail address will be automatically captured and included as part of

the comment that is placed in the public docket and made available on the Internet. If you

submit an electronic comment, EPA recommends that you include your name and other contact

information in the body of your comment and with any disk or CD-ROM you submit. IfEPA

cannot read your comment due to technical difficulties and cannot contact you for clarification,

EPA may not be able to consider your comment. Electronic files should avoid the use ofspecial

characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although

listed in the index, some information is not publicly available, e.g., CBI or other information

whose disclosure is restricted by statute. Certain other material, such as copyrighted material,

will be publicly available only in hard copy. Publicly available docket materials are available

either electronically in www.regulations.gov or in hard copy at the Air Planning Section (6PDL), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

The file will be made available by appointment for public inspection in the Region 6 FOIA

Review Room between the hours of 8:30am and 4:30pm weekdays except for legal holidays.

Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph

below or Mr. Bill Deese at 214-665-7253 to make an appointment. If possible, please make the

appointment at least two working days in advance of your visit. There will be a 15 cent per page
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fee for making photocopies of documents. On the day ofthe visit, please check in at the EPA

Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The State submittal is also available for public inspection at the State Air Agency listed

below during official business hours by appointment:

City ofAlbuquerque Environmental Health Department, Air Quality Division, Office of

Air Quality, One Civic Plaza Northwest, Albuquerque, New Mexico 87103.

FOR FURTHER INFORMATION CONTACT: Jeffrey Riley, Air Planning Section (6PD-L),

Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas

75202-2733, telephone 214-665-8542; fax number 214-665-7263; e-mail address

rileyjeffrey@epa.gov.

SUPPLEMENTARY INFORMATION

Throughout this document, whenever "we" "us" or "our" is used, we mean the EPA.

Outline

I. What Is Transportation Conformity?

II. What Is the Background for This Action?

III. What Did the State Submit and How Did We Evaluate It?

IV. Final Action

V. Statutory and Executive Order Reviews
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I. What Is Transportation Conformity?

Transportation conformity is required under section 176(c) ofthe Clean Air Act to ensure

that Federally supported highway, transit projects, and other activities are consistent with

(conform to) the purpose ofthe approved SIP. Conformity currently applies to areas that are

designated nonattainment, and those areas redesignated to attainment after 1990 (maintenance

areas), with plans developed under section 175A ofthe Clean Air Act for the following

transportation related criteria pollutants: Ozone, particulate matter (PM2.5 and PM10), carbon

monoxide (CO), and nitrogen dioxide (N02). Conformity with the purpose ofthe SIP means

that transportation activities will not cause new air quality violations, worsen existing violations,

or delay timely attainment ofthe relevant National Ambient Air Quality Standards (NAAQS).

The Federal transportation conformity regulations (Federal Rule) are found in 40 CFR part 93

and provisions related to conformity SIPs are found in 40 CFR 51.390.

II. What is the Background for This Action?

The transportation conformity SIP enables the area to implement and enforce the Federal

transportation conformity requirements per 40 CFR 51 subpart T and 40 CFR 93 subpart A. The

AEHD initially complied with this requirement by submitting a SIP to EPA on December 19,

1994; we approved this SIP on November 8, 1995 (60 FR 56241). A revision to the conformity

SIP was submitted on December 9, 1998 and approved by EPA on July 8, 1999 (64 FR 36786).

Since the July 8, 1999 approval, the Governor ofNew Mexico has submitted three further

revisions to the conformity SIP. The most recent ofthese, the December 4,2008 submittal,

supersedes the previous revisions submitted on May 15, 2003 and August 4, 2005. These

previous revisions were also made to incorporate Federal conformity rule changes into the state
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conformity SIP for Bernalillo County, but contained language that was in conflict with the

Federal rules that were in effect at the time of EPA's review ofthe conformity SIP. Therefore,

EPA could not approve the language in question. EPA and AEHD agreed that rather than EPA

acting to partially approve the submittals, AEHD would develop a subsequent submittal to

supersede the previous submittal, address the conflicting language, and capture any revisions

made to the Federal rules in the elapsed time since state adoption ofrevisions to the Bernalillo

County transportation conformity SIP. This approach was taken on both the August 4, 2005

submittal (to supersede the May 15,2003 submittal) and the December 4,2008 submittal (to

supersede the August 4, 2005 submittal) to keep pace with necessary revisions to the Bernalillo

County transportation conformity SIP.

On January 9, 2002, the AEHD adopted changes to the conformity SIP to include a

definition for Land Use Measures (LUM) along with requirements for using LUMs as air quality

credits in conformity determinations. This revision also incorporated language regarding an

acceptable Transportation Control Measure (TCM) substitution process and provided clarity on

when emission reduction credits for TClvlsmay be used in the conformity process. These

revisions were approved by the AEHD on January 9,2002 and they were submitted to EPA by

the Governor ofNew Mexico on May 15,2003. EPA did not take action on these revisions, and

the December 4, 2008 submittal is intended to supersede these revisions.

On July 1, 2004, EPA published significant revisions to our conformity regulations (69

FR 4004) to address criteria and procedures for the new 8-hour ozone and fine particulate

(PM2.s)National Ambient Air Quality Standards (NAAQS). In the same Federal Register

notice, EPA also addressed a March 2, 1999 ruling by the U. S. Court of Appeals for the District

ofColumbia (Environmental Defense Fund v. EPA, et al., 167 F. 3d 641 D.C. Cir. 1999); the
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July 1 revisions served to bring our regulatory language in line with this court decision. The SIP

revision package adopted by the AEHD on May 11, 2005, and submitted by the Governor of

New Mexico on August 4,2005, addressed these mandatory revisions, as well as EPA's August

6,2002 revision to the Federal conformity rule (67 FR 50808). EPA did not take action on these

revisions, and the December 4, 2008 submittal is intended.to supersede these revisions.

On August 10,2005, the Safe, Accountable, Flexible, Efficient Transportation Equity

Act: A Legacy for Users (SAFETEA-LU) was signed into law. SAFETEA-LU revised certain

provisions ofsection 176(c) ofthe Clean Air Act, related to transportation conformity. Prior to

SAFETEA-LU, states were required to address all ofthe Federal Rule's provisions in their

conformity SIPs. After SAFETEA-LU, state's SIPs were required to contain all or portions of

only the following three sections ofthe Federal Rule, modified as appropriate to each state's

. circumstances: 40 CFR 93.105 (consultation procedures); 40 CFR 93.122(a)(4)(ii) (written

commitments to implement certain kind of control measures); and 40 CFR 93.125(c) (written

commitments to implement certain kinds ofmitigation measures). Pursuant to SAFETEA-LU,

States are no longer required to submit conformity SIP revisions that address the other sections

ofthe Federal conformity rule. However, as with previous SIP revisions, the AEHD has

maintained its practice of incorporating federal language into local rules and customizing such

rules to meet the standard required by the New Mexico Administrative Code (NMAC) style

guidance, rather than incorporating by reference the federal rules.

EPA promulgated amendments to the Federal conformity rule on January 24, 2008 (73

FR 4420). The December 4, 2008 revision serves to update Albuquerque's regulations and bring

them inline with these most recent changes to the Federal conformity rule, as well as EPA's May
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6,2005 (70 FR24279) and March 10,2006 (71 FR 12467) revisions to the Federal conformity

rule.

III. What Did the State Submit, and How Did We Evaluate It?

On December 4th, 2008, the Governor ofNew Mexico submitted a revision to the

Bernalillo County, New Mexico State Implementation Plan (SIP) for Transportation Conformity

purposes. The SIP revision consists oflanguage to address the three provisions ofthe EPA

Conformity Rule required under SAFETEA-LU: 40 CFR 93.105 (consultation procedures); 40

CFR 93.122(a)(4)(ii) (certain control measures), and 40 CFR 93.125(c) (mitigation measures).

As previously stated, the AEHD did not incorporate the Federal conformity rule by reference, but

submitted language intended to mirror the content ofthe Federal conformity rule, while placing

greater specificity on the roles and expectations ofstate and local agencies/entities which have

responsibility for undertaking transportation conformity in conjunction with transportation

planning activities along with the three Federal Agencies (EPA, Federal Highway

Administration, and Federal Transit Administration) who are participating members in the

conformity consultation process.

We reviewed the submittal to assure consistency with the January 2009, "Guidance for

Developing Transportation Conformity State Implementation Plans". The guidance document

can be found at http://www.epa.gov/otaq/stateresources/transconj/policy/42Ob09001.pdf The

guidance document states that each state is only required to address and tailor the aforementioned three sections ofthe Federal Conformity Rule in their state conformity SIPs.

EPA's review ofNew Mexico's Bernalillo County Transportation Conformity SIP

revision indicates that it is consistent with EPA's guidance in that it included the three elements
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specified by SAFETEA-LU and EPA's guidance. Consistent with the EPA Conformity Rule at

40 CFR 93.105 (consultation procedures), NMAC 20.11.3.202 establishes the requirements for

the appropriate agencies, procedures and allocation ofresponsibilities.as required under 40 CFR

93.105 for consultation procedures. In addition, this chapter provides for appropriate public

consultation/public involvement consistent with 40 CFR 93.105. With respect to 40 CFR

93.122(a)(4)(ii) and 40 CFR 93.125(c), NMAC 20.11.3.219(A)(4)(b) and NMAC 20.11.3.222(C)

ofthe executed MODs specifies that written commitments for control measures and mitigation

measures for meeting these requirements will be provided as needed.

IV. Final Action

EPA is hereby approving the Bernalillo County SIP revision for Transportation

Conformity, which was submitted on December 4,2008. We have evaluated the State's

submittal and have determined that it meets the applicable requirements ofthe Clean Air Act and

EPA regulations, and is consistent with EPA policy. The December 4,2008 submission

supersedes the May 15, 2003 and August 4, 2005 submissions, so no action is necessary on these

earlier submissions.

EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules

section ofthis Federal Register publication, we are publishing a separate document that will

serve as the proposal to approve the SIP revision ifrelevant adverse comments are received.

This rule will be effective on [FEDERAL REGISTER OFFICE: insert date 60 days from

date of publication in the Federal Register] without further notice unless we receive adverse

comment by [FEDERAL REGISTER OFFICE: insert date 30 days from date of publication
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in the Federal Register). Ifwe receive adverse comments, we will publish a timely withdrawal

in the Federal Register informing the public that the rule will not take effect. We will address

all public comments in a subsequent final rule based on the proposed rule. We will not institute

a second comment period on this action. Any parties interested in commenting must do so now.

Please note that if we receive adverse comment on an amendment, paragraph, or section ofthis

rule and ifthat provision may be severed from the remainder ofthe rule, we may adopt as final

those provisions ofthe rule that are not the subject of an adverse comment.

V. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that

complies with the provisions ofthe Act and applicable Federal regulations. 42 U.S.c. 7410(k);

40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices,

provided that they meet the criteria ofthe Clean Air Act. Accordingly, this action merely

approves state law as meeting Federal requirements and does not impose additional requirements

beyond those imposed by state law. For that reason, this action:

• is not a "significant regulatory action" subject to review by the Office ofManagement and

Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the provisions ofthe Paperwork

Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number ofsmall

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small

governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);
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• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255,

. August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to

Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May

22,2001);

• is not subject to requirements of Section 12(d) ofthe National Technology Transfer and

Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose requirements would

be inconsistent with the Clean Air Act; and

• does not provide EPA with the discretionary authority to address, as appropriate,

disproportionate human health or environmental effects, using practicable and legally

permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order

13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian

country located in the state, and EPA notes that it will not impose substantial direct costs on

tribal governments or preempt tribal law..

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take

effect, the agency promulgating the rule must submit a rule report, which includes a copy ofthe

rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA

will submit a report containing this action and other required information to the U.S. Senate, the

U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to

publication ofthe rule in the Federal Register. A major rule cannot take effect until 60 days
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after it is published in the Federal Register. This action is not a "major rule" as defined by 5

U.S.C.804(2).

Under section 307(b)(l) ofthe Clean Air Act, petitions forjudicial review ofthis action

must be filed in the United States Court of Appeals for the appropriate circuit by [Insert date 60

days from date of publication of this document in the Federal Register]. Filing a petition for

reconsideration by the Administrator ofthis final rule does not affect the finality ofthis action

for the purposes ofjudicial review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness ofsuch rule or action. This action

may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
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.. List of Subjects M --------~=-...,;

( 40 CFR part 52

Environmental protection, Air pollution control, Intergovernmental relations, Ozone, Nitrogen

dioxides, Particulate matter, Reporting and recordkeeping requirements, Transportation

conformity, Transportation-air quality planning, Volatile organic compounds.

~.£c;;Cj~ Dated: Lawrence E. Starfield ,

Acting Regional Administrator, Region 6.
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40 CFR part 52 is amended as follows: 

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart GG—New Mexico 

2. The second table in § 52.1620(c) entitled “EPA Approved Albuquerque/Bernalillo County, 

NM Regulations” is amended by revising the entry for Part 3 (20.11.3 NMAC), Transportation 

Conformity, to read as follows: 

§ 52.1620 Identification of plan. 

* * * * * 

(c) * * * 

* * * * * 

EPA APPROVED ALBUQUERQUE/BERNALILLO COUNTY, NM REGULATIONS 

State citation Title/subject State approval/ 

effective date 

EPA approval date Explanation 

* * * * * * * 

New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 11 —

Albuquerque/Bernalillo County Air Quality Control Board 

* * * * * * * 

Part 3 

(20.11.3 

NMAC) 

Transportation 

Conformity 

12/17/2008 [Insert date of 

FR publication] 

[Insert FR page 

number where 

document begins] 

* * * * * * *